One Statute for Two Spirits: Same-Sex Marriage in Indian Country

JURIST Guest Columnist Elizabeth Ann Kronk of the University of Kansas School of Law evaluates the recent approval of a measure to permit same-sex marriages in the Little Traverse Bay Bands of Odawa Indians...

On March 15, 2013, the Little Traverse Bay Bands of Odawa Indians (LTBB) became the third tribal nation to recognize same-sex marriages. The LTBB statute, Waganakising Odawak Statute 2013-003 [PDF], defines marriage as "the legal and voluntary union of two persons to the exclusion of all others." The Coquille Tribe, in 2009, and Suquamish Tribe, in 2011, both previously recognized same-sex marriages. Unlike the Coquille Tribe, located within Oregon, and the Suquamish Tribe, located within Washington, LTBB's tribal territory is located within Michigan, a state that does not currently recognize same-sex marriages. Accordingly, some may question the authority of LTBB and similarly situated tribal nations to enact provisions, such as the Waganakising Odawak Statute 2013-003, that conflict with state policy.

As separate sovereigns pre-existing the formation of the US, Native American tribes possess the authority to enact laws governing their internal affairs. Tribal nations existed as separate sovereign nations for centuries before the arrival of non-natives, and, as such, tribal law is separate from either US state or federal law. The sovereignty and separateness of tribal nations was first recognized by the US Supreme Court in 1831 when Chief Justice John Marshall wrote in Cherokee Nation v. Georgia that tribal nations were separate political entities, "domestic dependent nations," capable of managing their own internal affairs. Since 1831, the Supreme Court, the US Congress and successive presidents since Richard Nixon [PDF] and including Barack Obama [PDF] have consistently reaffirmed tribal sovereignty and the ability of tribes to manage their internal, domestic affairs. Notably, in 1897, the Supreme Court acknowledged that tribal nations' authority over domestic affairs included authority over marriage requirements within the tribal territory.

In addition to recognizing the separate sovereignty of tribal nations since the early nineteenth century, so too has the US recognized that the laws of states do not apply to tribal nations under certain circumstances. In 1832, the Supreme Court decided Worcester v. Georgia, which addressed the authority of Georgia to apply its laws to activities occurring within the Cherokee Nation's territory. At the time, the Cherokee Nation was located within the boundaries of Georgia. In holding that Georgia could not apply its laws to activities occurring within the territory of the Cherokee Nation, Marshall explained that the laws of the states generally do not have force and effect within Indian country. Tribes therefore have the inherent sovereignty to pass laws regulating their internal, domestic affairs, and, generally, the laws of the states do not apply in Indian country. Over the ensuing decades, the absolute prohibition against the application of state law within tribal territories has eroded, but it is still true today that tribal power extends to "what is necessary to protect tribal self-government or to control internal relations." Passage of the LTBB Waganakising Odawak Statute 2013-003 was therefore consistent with this enduring principle of Indian law.

Moreover, adoption of the Waganakising Odawak Statute 2013-003 is also consistent with tribal customs and traditions. In a March 27, 2013, telephone interview [by the author], Annette VanDeCar, an enrolled member of LTBB and Communications Coordinator for LTBB, explained that lesbian, gay, bisexual and transgendered (LGBT) people were historically seen by the Anishinaabe (Odawa, Ojibwe and Algonquin people) of the Great Lakes region as possessing "two spirits"  one male and one female spirit. As such, LGBT individuals in many tribal communities are typically referred to as "two-spirit people." Two-spirit people were generally accepted by Anishinaabe communities, as it was recognized that each individual had an important role to play within the tribal community. LTBB norms and beliefs may have changed because of the incorporation of Christianity into the community. However, VanDeCar believes that the majority of the present day LTBB community is supportive of two-spirit community members, and she noted that the majority of feedback the tribe has received since passage of the Waganakising Odawak Statute 2013-003 has been positive. In an e-mail sent by LTBB Chairman Dexter McNamara, he explained that "[t]he Little Traverse Bay Bands of Odawa Indians, in exercising powers of self-governance, shall NOT deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law."

The customs and traditions of the Anishinaabe seem to be consistent with other tribal communities. Scholars have identified similar traditions of respecting two-spirit people in other communities, such as the Navajo Nadleehe, Zuni Lhamana, and Lakota Winkte. In this regard, tribal law recognizing same-sex unions or marriages may be consistent [PDF] with how two-spirit people have been treated historically by some tribal nations.

As previously acknowledged, however, LTBB is located within the territory of the state of Michigan. As far back as the nineteenth century, the Michigan Supreme Court acknowledged that it did not have control over tribal nations' internal affairs, and marriages in particular, commenting in Kobogum v. Jackson Iron Co [PDF], that "we had no more right to control [tribal] domestic usage than those of Turkey or India." Accordingly, Michigan will not try to assert its laws over marriages recognized by LTBB.

However, this does not mean that the state of Michigan will itself recognize same-sex marriages performed within LTBB. According to Article I, Section 25 of the Michigan Constitution, "[t]o secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose." Given that the state of Michigan defines marriage as "the union of one man and one woman," Michigan will not recognize same-sex marriages conducted by LTBB when those benefitting from the LTBB law leave the tribe's territory. A spokesperson for the Michigan attorney general stated that "[t]he Michigan Constitution defines marriage as a union between one man and one woman. Same-sex marriages performed in other states, countries, or in sovereign tribal nations are not valid in the state of Michigan." This is consistent with the general principle of federal Indian law that Indians are subject to the non-discriminatory state laws applicable to all citizens of the state when they leave tribal territory.

Moreover, Michigan would not be required to recognize same-sex marriages recognized by LTBB under the doctrine of comity or the Full Faith and Credit Clause of the US Constitution. The doctrine of comity allows states great flexibility in deciding whether or not to recognize the judgments of other jurisdictions. Despite the fact that states generally apply the doctrine of comity to tribal judgments, given that same-sex marriages are constitutionally prohibited in Michigan, it is unlikely that the state would apply the doctrine to same-sex marriages recognized by LTBB. There is debate as to whether the federal recognition requirement applies to tribal nations, given that tribal nations are not US states, and it is unclear whether they would qualify as territories or possessions under the applicable federal statute. In the context of same-sex marriages and unions, however, this question is moot given that the Defense of Marriage Act (DOMA) allows states to refuse to recognize same-sex marriages performed in other states. Notably, the Supreme Court is currently considering the constitutionality of DOMA, and, as a result, the Court's decision may revive debate regarding the application of the federal full faith and credit provision to tribal nations.

In short, LTBB clearly had the authority to enact the Waganakising Odawak Statute 2013-003, allowing for same-sex marriage. Enactment of this statute is consistent with tribal sovereignty, Indian law and, apparently, tribal customs and traditions. In this regard, LTBB becomes one of an increasing number of tribal nations and states recognizing same-sex marriages and unions. Despite the tribe's sovereignty, however, Michigan is currently not required to recognize same-sex marriages performed in accordance with LTBB law.

Elizabeth Ann Kronk is an Associate Professor of Law and Director of the Tribal Law and Government Center at the University of Kansas School of Law in Lawrence, KS. A former chair and elected member of the national board of directors of the Federal Bar Association Indian Law Section, she is an expert in Federal Indian Law, Native American Natural Resources, and Property. In addition, she serves as an appellate judge for the Sault Ste. Marie Tribe of Chippewa Indians of Michigan and is an enrolled citizen of the same tribe.

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